Research On System Of Environmental Public Interest Litigation

The environment is the basis of human survival and development, However, while China isundergoing rapid economic development, the environment we live in is deteriorating. Local environmentalprotection making way for economic development is not uncommon phenomenon, the result is heavypressure, even irreversible damage on environment.For the acts of environmental pollution and destructionof resources, China has long practiced single-track operation mechanism of state administration, whichexpose very obvious drawbacks. Above-mentioned environmental management mechanism exclude ofcitizen participation and bring China’s increasingly serious environmental problems.Current law, in particular the constitution and the basic law is not on the direct provision ofenvironmental public interest litigation. Certain laws and regulations in relevant environmental legislationand judicial interpretation is only close to the environmental public interest litigation, or contains thefactors of environmental public interest litigation law. In theory, it could be interpreted as the nationalindirect support of environmental public interest litigation. however, judicial practice can not to follow thelack of legislation on environmental public interest litigation, the court often have to scruples in the processof handling cases,and stuck in a dilemma.In recent years, accompanied by the local judiciary gradually introducing normative documents of theenvironmental public interest litigation, environmental public interest litigation in the judicial practice isnot uncommon, and played a good effect. However, the environmental public interest litigation exposed toa lot of problems in identifying plaintiff and environmental damage and allocating of the burden ofproof.Therefore, the economic losses caused by environmental pollution is mainly only be resolved by wayof private interest litigation.However, when the citizens compensate for the damage caused by environmental pollution by way ofprivate interest litigation, we find a number of shortcomings in China’s public current procedural lawsystem which is not conducive to environmental protection, including environmental litigation qualificationis too strict, limitation of action is not conducive to environmental litigation, the burden of proof principleis not conducive to the environmental benefits of conservation, system of the damage identificationit aswell as remedial is not conducive to environmental litigation. In recent years, an indisputable fact of increasing environmental damage in China and the growing weakness in China’s environmental publicjudicial relief have been much criticized.In accordance with Western economics’ view, environmental problems is the results of negativeexternalities bringed by the socio-economic activities of production and consumption, which means thespillover effects of the socio-economic activities is negative. The main players in the market tend to pass onthe adverse effects in environment to society, however, the polluter itself does not afford the correspondingcost and assume the corresponding responsibilities. Because of externality, the environment can not beeffectively protected, and social resources can not be allocated efficiently, it’s necessary to internalizeexternalities.Neither raditional public solutions nor private solution is the best choice to solving the negativeexternalities of the environment utilization. Public solutions depends on taxation, the economic agents inpursuit of greater profits would rather pay higher taxes; private solution, mainly depending on privatenegotiations between the environmental pollution and the victim to compensate for the loss of the interestsof victims, which only means the balance between the interests of environmental pollution and victims, isnot fundamental solutions to environmental problems. The positive externalities of environmental publicinterest litigation not only bring benefits to plaintiff, but also bring the whole community benefits,which issupposed to be the best option to solve environmental problems in China.However, the positive externalities of the environmental public interest litigation cause plaintiff oftenhave to pay greater litigation costs than the potential benefits of prosecution. So, there is a general lack ofeconomic motivation for protection of environmental public interest, citizens generally hold thepsychology of being a free-rider. Therefore, in order to improve citizens’ enthusiasm of protecting theenvironment, we have to internalize externalities of environmental public interest litigation, and theenvironment public interest litigation system should be the unique design different from other generallitigation.In accordance with the requirements of the externality theory, combined with the China’s nationalconditions, learning from the practice of environmental public interest litigation in the most developedcountries such as the United States and Japan, the paper presents the concept of targeted vision of theestablishment of the system of environmental public interest litigation in China. First of all, establish the plaintiff reward system and restraint system. Secondly, in the design of the procedures of environmentalpublic interest litigation system, suitably relax the scope of the indicted persons, make it gradually coversthe specific state organs, the environmental public interest groups, the citizens; establish a reasonableallocation of the burden of proof, combine the principle of “the presumption of causality "and" the burdenof proof responsibility inversion” to a hybrid accountability; formulate different charging mechanisms tominimize the economic burden of the indicated persons; expand res judicata of the environmental publicinterest litigation to potential victims, so the potential victims who did not participate in the proceedingsalso enjoy the same rights, thereby the social costs will be saved; learning from American experience,establish a class action, which give eligible members of the group the right to prosecute on behalf of theentire group, and make court decisions cover members who didn’t participate in the proceedings; accordingto long incubation period of the environmental damage and the fact of damage results being difficult toidentify, formulate flexible limitation of actions for the environment public interest litigation..